Citation Nr: 1309910
Decision Date: 03/25/13 Archive Date: 04/02/13
DOCKET NO. 09-36 422 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for colon cancer.
REPRESENTATION
Veteran represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
Sara Schinnerer, Counsel
INTRODUCTION
The Veteran served on active duty from May 1969 to May 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran is the recipient of several medals and badges, including the Vietnam Service Medal with two Bronze Stars, as well as the Combat Infantry Badge.
FINDINGS OF FACT
1. The Veteran had service in Vietnam during the Vietnam Era and was exposed to herbicides.
2. The medical evidence shows a current diagnosis of colon cancer.
3. The record containsmedical evidence establishing a medical nexus between the Veteran's colon cancer and exposure to Agent Orange while in service.
CONCLUSION OF LAW
Colon cancer was incurred during active military service. 38 U.S.C.A. § 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(iii) (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for colon cancer. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992
The Veteran contends that his current colon cancer is a result of his service in Vietnam, namely exposure to herbicides. In this regard, during the December 2012 hearing before the Board, the Veteran testified that he served in Vietnam for approximately one year from October 1969 to October 1970, with the 101st Airborne, when he was exposed to defoliant on the firebases, as well as during combat. Further, V.Z., the Veteran's former Company Commander, submitted a letter dated in July 2008, in which he indicated that the Veteran was assigned to "A" company, 1/501st, 101st Airborne Division, which was assigned to Firebases and other areas where defoliant was used.
Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Moreover, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Those disorders are the following: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
Effective August 31, 2010, VA amended the regulatory provisions governing service connection on a presumptive basis due to exposure to herbicides by adding all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). See 75 Fed. Reg. 53,202 (Aug. 31, 2010).
The Veteran's Form DD 214 shows that he served in the Republic of Vietnam from October 31, 1969, to October 18, 1970. As such, the Veteran's exposure to herbicides is presumed absent affirmative evidence establishing a contrary finding. 38 C.F.R. § 3.307 (a)(6)(iii). There exists no evidence to refute the Veteran's presumed exposure to herbicides. Therefore, the Board finds that the Veteran's exposure to herbicides is presumed.
An April 2008 VA surgical pathology report of a rectal biopsy reports adenocarcinoma. However, colon cancer is not enumerated as a disease associated with exposure to herbicides by VA. 38 C.F.R. § 3.309(e). Therefore, the Veteran is not entitled to presumptive service connection for colon cancer.
This does not, however, preclude the Veteran from establishing entitlement to service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). Consequently, the determinative issue is whether the Veteran's colon cancer is attributable to the Veteran's active military service, including his presumed exposure to an herbicidal agent while in Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314 (1993); Hibbard v. West, 13 Vet. App. 546, 548 (2000).
In this regard, a December 2012 opinion letter submitted by the Veteran's VA treating physician opined that the Veteran's colon cancer was "likely" related to his exposure to Agent Orange. There is no medical evidence of record that refutes this opinion. Accordingly, the Board finds that service connection for colon cancer is warranted.
ORDER
Service connection for colon cancer is granted.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs